I've
even set up a Facebook
group for Joho readers, just because that's what
the cool kids are doing. It's called — surprise! — Joho. You have to
join Facebook to avail yourself of it, which means you have Yet Another
inbox to check. But once there, you'll be able to do something or
other. It beats me. Let me know if you figure it out.

Teaching
again

I'm
teaching a college course again, for the first time since 1986. This
doesn't make me anxious at all. After all, teaching is just like riding
a bicycle: Even after all these years, you just get back on, slam into
mail boxes, and look way
worse in spandex.

The
course is at Harvard Law, which doesn't ratchet up my anxiety
even seven or eight orders of magnitude. Fortunately, my co-teacher is
John
Palfrey, who is (a) wise beyond his or anyone's years, (b)
one of the best
teachers
I've ever seen, (c) the sweetest man on the planet. Our topic
is: Is the Web different from what came before it, and what effect does
and should that have on law and policy?

You
can read the class blog here.
There's a syllabus
posted there, too.

Is
the Web Different?

The
question "Is the Web different?" is actually not so much
a
question as a shibboleth in the original sense: The answer determines
which tribe you're in.

The Web utopians point to
the ways in which the Web has
changed some of the basic assumptions about how we live together,
removing old obstacles and enabling shiny new possibilities.

The Web dystopians agree
that the Web is having a major
effect on our lives. They, however, think that effect is detrimental.

The Web realists say the
Web hasn't had nearly as much effect
as the utopians and dystopians proclaim. The Web carries with it
certain possibilities and limitations, but (the realists say) not many
more
than other major communications medium.

Each of these is a political position: They imply normative
beliefs, and they lead their holders to certain types of behaviors and
actions:

The utopians want the Web
to have wide effects as quickly as
possible. They therefore favor connecting as many people as possible
and maintaining the Web as an open, public space.

The dystopians want to
curb the excesses of the Web, or prepare us to deal with those excesses.

The realists want to curb
the excesses of the utopians who, they think, are feeding unrealistic
expectations.

Simply the act of holding the position is itself a political
action for all three groups:

The utopians think that by
holding out
a vision of what will or might be, they are affecting the direction of
the present.

The dystopians are
sounding a call to action, even if some
dystopians think that we are doomed to suffer under the Web's
increasing hegemony.

The realists may not view
their position as political because
it is — they believe — based merely on a clear-eyed, non-politicized
view of the world. But this is itself a political decision that leans
toward supporting the status quo
because what-is is more knowable than what might be.

So, which of the three positions — or some variant — is
right?
Is the Web different in a way that matters?

The obvious answer to the question "Which one is right?" is:
Time will tell.

Unfortunately, time papers over all wounds. Our values
change,
so our evaluations of change shift over time. The extraordinary becomes
ordinary with extraordinary rapidity and insinuates itself into memory,
undercutting the reliability of our judgments about the magnitude of
change. So, time will not tell.

Nor is this a simple fact-based issue. Realists would like
it
to be, but that's what makes them realists. Consider this hypothetical
exchange:

Realist: You say that the Web will transform politics. But
politics is as it ever was.

Utopian: Just wait.

This is, indeed, one of the two basic blocking tactics used
by
Web utopians: The changes are so important that they will take a while
to arrive, and the changes are so fundamental that we aren't always
even aware of them. Here's an example of the second tactic at work:

Realist: You say that the Web will transform business, but
business is as it ever was.

Utopian: Not at all! For example, email has transformed
meetings, but
we're so used to the change that we don't even recognize it.

To this, the Web realist has a number of responses:
Denying that the changes are real, that they are important, or that
they are due to the Web.

When a dystopian points to a bad effect of the Web, the
utopian denies the truth of the value claim, its inevitability, or its
importance:

Dystopian: The Web has made pornography available to every
schoolchild!

Utopian: It is the responsibility of parents to make sure
their kids are using child-safe filters. Besides, viewing pornography
may weaken our unhealthy anti-sexual attitudes. Besides, greater access
to porn is just one effect of the Web; it's brought greater access to
literature, art, science...

The realist wants to bring the argument squarely within the
realm of facts. Facts can, of course, resolve some disputes. But facts
are unlikely to settle the overall question of the Web's difference
because the utopians, dystopians and realists are probably operating
from different views of history, and the framing of history also frames
facts.

Many utopians think the
Web has uncanny power because they
are
McLuhanites who think media transform institutions and even
consciousness. The McLuhanites' belief in the shaping power of media
leads them to a rhetoric of "not only": Not only did the printing press
enable the spread of literacy, it led to our reliance on experts.
The next McLuhanite up says, "Not only did it lead to experts, it
actually
changed the shape of knowledge." Web utopians engage in the same
rhetorical one-upmanship.

Many Web dystopians share
the utopians' disruptive view of
the
Web, although they are struck more by the facts with negative values.

Many Web realists think
change happens far more
incrementally. They feel the inertial weight of existing institutions
and social structures. Nothing as trivial as HTML will change the fact
that most of the world is in poverty and that corrupt corporations are
firmly in control.

These positions about how history works cannot be defended
by
looking at history, for they determine how history is to be read. For
example, did the Howard Dean campaign in 2004 show that the Web is
profoundly altering politics, that the Web has had little effect on
politics, or that the Web is further degrading politics? All three
positions are defensible because historical events such as presidential
campaigns are carried along social wavefronts of unfathomable
complexity. Did Dean get as far as he did because of the Web or because
of the media? Did his campaign fail because the Web created a bubble of
self-involvement, because the Web ultimately did not get people out to
vote, or because he was a quirky candidate who, without the Web,
wouldn't have been noticed outside of his home state of Vermont?

To make matters yet more complex, holders of these three
positions are not merely uttering descriptive statements. Frequently,
they speak in order to have a political effect:

Utopians want to excite
us about the future possibilities because they want policies that will
keep the Internet an open field for bottom-up innovation.

Dystopians
want to warn us of the dangers of the Web so we can create policies and
practices that will mitigate those
dangers.

Realists want to clear
away false promises so we can focus on
what really needs to be done. Also, they'd like the blowhard utopians
to just shut up for a while.

Arguments that have different aims and are based on
differing
views of how history works and of the nature of the interactions
between the material and social realms are not settled by facts. In
fact, they're not settled. Ever. Even after the changes happen, these
three temperaments and cognitive sets will debate why the changes
happened, how significant they were, and whether they were good, bad or
indifferent.

Time won't tell.

Unfortunately, we can't afford to wait for time not to tell
us. "Is the Web different?" is an urgent question. Decisions depend on
our answer.

For example, if the Web utopians are right — if the Web is
transformative in an overall positive way — then it's thus morally
incumbent upon us to provide widespread
access to as much of the world as is possible, focusing on the
disadvantaged. If the Web dystopians
are right, we need to put in place whatever safeguards we can. If the
realists are right, then we ought to make tactical adjustments but
ignore the hyperventilations of the utopians and dystopians.

Then there are the more localized decisions. If the Web is
transforming business, for better or for worse, then businesses need to
alter their strategic plans. If the Web is merely one more way
information travels, then businesses should be looking only at tactical
responses. Likewise for every other institution that deals with
information, including government, media, science, and education.

So, we need to decide.

But there is no way to decide.

Fortunately, this is not the first time we humans have been
in
this position. In fact, it is characteristic of politics overall. Who's
right, the liberals, the conservatives, or neither? Because such a
question can't be answered to the satisfaction of all the parties
involved, we come up with political means for resolving issues. For
politics to work in helping us to decide what to do about and with the
Web, we need all three positions plus the incalculable variants
represented.

Together we'll settle the future's hash.

But I don't want to leave it at that happy, liberal
conclusion
because it is, I believe, incomplete. The fuller statement of the
conclusion should include: It is vital to have realists in the
discussion,
but they are essentially wrong.

I am using the word "essentially" carefully here. Web
realists
are often right in their particular arguments, demurrals and
corrections, and the utopians and dystopians are often wrong in their
predictions, readings, and even facts. That matters. Yet, the essence
of the utopian
and dystopian view is that the Web is truly different. About that they
are right.

Why? I am enough of a McLuhanite to believe that media do
not
simply transmit messages. The means by which we communicate has a deep,
profound and even fundamental effect on how we understand ourselves and
how we associate with one another. Yes, the medium is the message.

If that's the case (and notice I am not giving any further
argument for it), then there are good reasons to think that the Web as
a medium is likely to be as disruptive as other media that have had
profound effects on culture. Perhaps the best comparison is to the
effect Gutenberg's invention has had on the West. Access to printed
books
gave many more people access to knowledge, changed the economics of
knowledge, undermined institutions that were premised on knowledge
being scarce and difficult to find, altered the nature and role of
expertise, and established the idea that knowledge is capable of being
chunked into stable topics. These in turn affected our ideas about what
it means to be a human and to be human together. But these are exactly
the domains within which the Web is bringing change. Indeed, it is
altering not just the content of knowledge but our sense of how ideas
go together, for the Web is first and foremost about connections.

Clearly, there is much more to say about this, and much has
already been said. But that is the general shape of one Web utopian
argument.

It can, of course, be challenged. It should be challenged,
both in its outline and in its particulars. Here Web realists have a
vital role to play. But at the highest level of abstraction, these
three
positions are not truly arguable. Each is an expression of
an attitude towards the future, and the future is that which does not
yet
exist. None of these three positions truly knows what the future holds
if only because the prevalence of these positions itself shapes the
unknown future.

And that is a reason to join the utopian tribe, or at least
to
acknowledge the special value it brings to the conversation. Innovation
requires the realism that keeps us from wasting time on the impossible.
But some of the most radical innovation requires ignoring one's
deep-bred confidence about what is possible. This is especially true
within the social realm where the limits on new ways to associate are
almost always transgressible simply by changing how we think about
ourselves. We thus need utopians to invent the impossible future.

And we need lots and lots of them. There is so much to
invent,
and the new forms of association that emerge often only succeed if
there are enough people to embrace them.

Web realists perform the vital function of keeping us from
running down dead ends longer than we need to, and from getting into
feedback loops that distort the innovation process. For those
services, we should thank and encourage the realists. But we should
also
recognize that beyond the particulars, they are essentially wrong.

The contention among dystopians, realists and utopians is is
a
struggle among the past, the present and the future. The present is
always right about itself but — in times of disruption — essentially
wrong about the future. That's why we need to flood the field with
utopians so we
can be right often enough that we build the best future we can.

It is, of course, simply an accident that this defense of
Web
utopianism comes from someone who is personally a Web utopian.
Absolutely coincidental.

Uh huh.

Fairness and scarcity

Time-Warner Cable (TWC) recently acknowledged that it's
going to test a billing system that will move Internet access closer to
the cellphone model: Those in the test will subscribe to a
tier of service
that buys them a certain number of bytes (like buying a package that
gives you 500 minutes of cellphone time), and if they go over their
allotment, they'll pay per byte.

This certainly seems fair. And it's better than other,
threatened ways of limiting the amount of network traffic. But, in my
opinion, it's
ultimately a bad way to go. Being fair is not enough. In fact,
sometimes
what's fair is wrong precisely because it's fair.

Oooh! A seeming paradox! One of the top three rhetorical
forms for essays!

TWC's proposal is a welcome relief from the Internet
carriers' arguments against Net neutrality. (See box below.) It lets
users
decide whether they want to spend their Internet allotment on, say,
lots and
lots of email or a few high-definition movies. Users could decide that
doing VOIP, which burns through bits with some rapidity, is worth it
even if that means they can't do all the Facebooking they might
want to do. Letting users decide is way better than
letting the carriers decide that we all want Hollywood movie packets to
shoulder aside World of Warcraft packets, YouTube packets, or Nigerian
spam packets.

Nevertheless, I don't like the TWC proposal. It's fair but
it's a good example of where fairness can get in the way.

I've written
about the fairness argument before, when arguing against the
tit-for-tat view of "intellectual property" that says a creator ought
to be paid every time her audience gets any value from her work. That's
fair, if fairness means an equivalence of value in an exchange.1 But
it
leads to a worse world. And that's why I don't like the TWC proposal.
In both cases, we reduce our cultural context to a transaction. We have
to think and calculate before we engage with one another and with what
we create for one another.

It
doesn't take much friction to disrupt a social or cultural ecology.
Think about how badly having to watch what you say disrupts your
relationship with your boss or your prospective in-laws. Having to
watch what you read or hear is just as disruptive. That is precisely
what making fairness our highest value will do to culture, whether that
fairness is the basis of our increasing copyright totalitarianism or
TWC's
pay-per-packet scheme. Fairness will change the Internet from
a world
into a resource. Abundance doesn't work its transformative magic if you
have to justify your every use of it. That brings scarcity-thinking to
the
abundance table.

Fairness
in fact operates best in times of scarcity. When you're trapped in a
subway tunnel with only enough food
for three days, and the zombies are scratching at the rubble, fairness
is a good way to divide up the remaining saltines, although you'll have
to argue
whether it's fair to give out five per person, or to give the big folks
more than the wee folks, or maybe to let market forces determine the
outcome. Nevertheless, you'd be right to use fairness
as your guide.

In times of abundance, tit-for-tat
fairness plays a different role.
Rather than being a positive principle, unfairness becomes
a bottom limit, a minimum standard. That a billing scheme is fair
doesn't tell us that it's the right one, but if it were unfair — half
off for Aryans! — that would tell us that it's the wrong one.

Utopianism is frequently a better
guide than fairness in such cases. If we could pay for Internet content
any way we wanted, what would wring the
maximum social, cultural, political and economic value out of this new
infrastructure? I think the answer to that question isn't all that
controversial: Everyone would have all they could use, everywhere they
are, without price much inhibiting their participation...while still
providing sufficient incentives so that creators will continue to
create. How we get there is,
of course, subject to tons of debate. But our aim should be to make the
Net so abundant that fairness is irrelevant.

Why I'm not neutral about Net neutrality

Net neutrality, as I understand it, is the fundamental
architectural principle of the
Internet that says that all packets will be treated equally.
It thus prevents Internet
carriers from discriminating against packets based on their origin or
application type.

3.
Some types of traffic are more time-sensitive than others: You don't
care if your email arrives one second later, but you do care if your
Internet-based telephone call or movie jitters by a second.

4.
Therefore, carriers ought to be allowed to "shape" net traffic by
delaying non-time-sensitive packets, and hurrying the time-sensitive
ones.

This
argument fails (imo) because: (i) It assumes that, if indeed premise #1
is true, the
carriers, who
are in the business of selling us content, are the best ones to decide
which content to deliver fast. In fact, there are better alternatives,
such as letting each user decide that, say, she wants World of Warcraft
bits to get priority over CD-quality phone calls, or that she'd prefer
to get jitter-free YouTubes but never watches Hollywood movies. (ii)
This argument gives carriers a financial
incentive to keep Net connectivity scarce.

(Just in case you're keeping score: Obama
supports Net
Neutrality, Hillary doesn't talk about it, and as far as I can tell,
none of the Republicans do.)

1Note that I am not using fairness in
the way most prevalent among philosophers since 1971 when John Rawls
published A
Theory of Justice. I mean it in the simple sense that a
transaction is fair if what's given is roughly of the same value as
what's taken.

2The
carriers frequently add a second
argument: Some sites generate more traffic than others, so it is only
fair that they pay more if they want their packets delivered speedily.
But: Those sites already pay for the packets they're producing, and
letting some sites respond more speedily by paying off the carriers
works against small sites and thus hurts innovativeness.

Remember back
before HTML, when SGML was battling to be the way software expressed a
document and its structure? SGML was precise and kept every hair in
place, while HTML was ok with some ambiguity and hadn't showered in a
couple of days. With the release of a draft
of HTML 5, we
see that the battle is not over. Far from it.

SGML lets you specify all the parts of a
document and how they go together: A cookbook might have elements such
as recipe, list_of_ingredients, instructions, photo and notes, and you
might set up rules such as: "Every recipe must have a list_of_ingredients and instructions." You could do
this in infinite detail. In
fact, SGML was such a fine standard that
entire industries came to a standstill as they tried to perfect
the structures required for complex document sets such as
aircraft repair
manuals and telecommunications equipment specification sheets.

Then along came
HTML, which is the SGML specification of the elements a Web page can or
should have. HTML said that a Web page can have six different types of
headings (H1 ... H6),
paragraphs (p), links (A), etc. It was so simple and incomplete the
SGML-ers generally referred to it as "brain dead." But HTML ruled
because
it was so simple, and enabled us to make clickable links that brought
to each
individual document the value of the web in which it was embedded.

HTML succeeded also because Web browsers had an incentive to
forgive its
trespasses. SGML systems were generally installed in controlled,
disciplined environments where you could insist that your writers use
no <p> without a corresponding </p>. But
HTML was taken up by undisciplined amateurs who just wanted to type 'n'
post.
They didn't want to run a spellchecker much less an arcane syntax
validator. What benefit does the person posting directions to her house
or instructions for setting a Casio watch get from worrying about
syntax? So, the
browsers forgave just about all mistakes. Competition assured this. If
you were making a new browser, you wanted it to be able to read every
page your competitors could, and more.

The browsers
then fought for dominance in part by coming up with their own
structural elements, hoping that people would create pages using them,
so that their browser would display something that other browsers did
not. Some were useful. Some were the blink tag.

Such tags drove the standards folks crazy. Take the
blink tag.
SGML-style standards folks hated it because: (1) It's ugly. (2) It came
from a single vendor (Netscape
Navigator, way back when) and thus was not uniformly accepted. (3) The
blink
tag expresses
how information is displayed, not anything about the document's
structure. For that
same reason, SGML folks don't like the font tag.

SGML's preference for structure over format (or
"presentation," as
they way) is simple, powerful, and annoying. For
example, SGML would let you note that this is a headline, that is a
by-line, and that other thing is body text, and it could let you
specify that every article has to begin with a headline, optionally
have a by-line, and always be followed by body text. But SGML was not
designed to let you say that headlines are in 24pt type and centered
while by-lines are in 10pt type and italicized. That sort of formatting
information was to be kept in a separate file that defined the
stylistic
properties of the various elements. Put
in new style definitions, and suddenly your newspaper goes in
appearance from NY Times to NY Post, while maintaining the same
structure — the lead story is the same, the articles have by-lines,
etc. Separating structural and formatting information is an amazingly
powerful, even liberating idea.

The problem is that most of us aren't standards folks and we
don't write by dividing documents into structure and
format. Certainly when we read we don't: We use format as a guide
to structure. And we know from 20+ years of word processing wars
that we don't write by separating the two. Back in the late 1980's,
WordPerfect was kicking Microsoft Word's skinny butt by letting you
create, say, a title by hitting the "center" key and the "bold" key.
Word, on the other hand, encouraged you to define the line as a
"title," and then
give formatting properties (centered and bold) to
"title" elements, in
quite an SGMLy way. It turned out that few people
actually wanted to do
that, so they instead "misused" Word by using it exactly how they used
WordPerfect. You still see this behavior in Word users who separate
paragraphs by hitting the Enter key twice. Foolish mortals! The proper
SGMLy method is to define your paragraph element as having a certain
bottom margin and only hitting the Enter key once. Otherwise you are
creating a structural element (a paragraph) simply to accomplish a
formatting aim (putting space between the paragraphs), which is a
violation that can cost you your structured document driving license.
In fact, you should probably just sign in to your nearest SGML rehab
center.

So,
now the HTML standards folks are ready for us to take the next big step
forward. We are currently in official version 4 of HTML, first
published in December 1997. Despite the fact that we should beware any
standard ten years in the
making, HTML 5 it attempts in a
sensible way to let
us have our structured cake and eat its format too.

HTML 4 lets us work the way most of us want to: We use the
basic HTML elements, but we format them in the WordPerfect way. So, if
we don't like the default format of an <H1>, we'll put in
some code like
this:

<h1><font face="Arial" color="red"><u>Howdy!</u></font></h1>

Certainly, these days many of us would instead do the right
thing,
which is to have our HTML reference a format file (CSS) that defines H1
as being red, Arial, and underlined. Even so, if we want an
exception — we want this particular H1 to be green or underlined — we
won't bother creating a special class of H1 via CSS. We'll just stick
in a <font> tag that colors it and a <u>
tag that
underlines it (or we'll insert a snippet of CSS style info right into
our HTML). The SGML folks may snicker, but it's just not worth it
to us to open up a CSS editor and make the change.

Although HTML 5 doesn't like the <font>
element, it recognizes something that SGML long struggled against: Not
only do computers and humans read documents differently, each
has its
place. So, HTML 5 introduces a distinction between HTML
done for and by
"user-agents" (browsers and other programs that handle pages) and
authors. And authors are given concessions. Sure, it'd be better to
separate all the formatting info from all the structural and content
info, but it's not gonna happen so long as humans are in control. So,
the <font> tag survives. Sort of. One of the W3C
docs puts it this way: the font tag "is allowed when inserted
by a WYSIWYG editor due to limitations in the state of the art in user
interface for these editors."

Other
formatting tags escape unscathed, although they are redefined in
non-formatting ways, often quite awkwardly. For example, the
<b>
element now "represents a span of text to be stylistically offset from
the normal prose without conveying any extra importance, such as key
words in a document abstract, product names in a review, or other spans
of text whose typical typographic presentation is emboldened." In other
words, it's defined as an element worth bolding and that is typically
bolded, but not as an element that is bolded. I'm sure that distinction
makes someone happy. In any case, HTML 5 supports <b>
pretty
much as it always has. And the new <m>
element indicates marked
or highlighted text; while that does not dictate how the element should
be highlighted — yellow overlay? red box? — it acknowledges that some
document structures are inextricably tied to their display.

The underline and strikethrough tags
(<u>,<s>) are
discontinued in HTML 5 because they are "purely presentational,"
although they don't seem any more or less structural than bold and
italic. There must have been some fun debates about these on the HTML 5
mailing list.

At
the same time, HTML 5 introduces some obvious structural elements
lacking in HTML 4. Most important, the <section>
tag will tell
browsers
and
other apps that you mean to divvy up your page in a structural
way. Before that, people usd the
<div> tag to indicate sections, but you can also use the
<div> to mark any stretch of a document, not just its
sections.
The <section> tag
comes with a meaning already set, marking a structural element of
documents common enough that it deserves to be a built-in part of the
semantics of Web pages.

Similarly,
the <figure> tag lets documents express a common
structural
relationship: This graphic (or video or whatever) goes with this
caption (or whatever). And an <aside> is of peripheral
interest. And an
<article> is an "independent piece of content" such as a
blog
post or a newspaper article. All of these new HTML 5 elements are
structures common enough
that they indeed deserve their own tags. Trying to come up with HTML 5
elements much more
specific than this would have driven it into the deep weeds that
swallowed
so many SGML efforts.

This
is by no means a full representation of all that's in HTML 5. Nor am I
a competent reviewer. I am impressed, however, that the upgraded
standard leaves wriggle
room for imperfect humans to mix structure and formatting instructions,
rather than insisting that we always structurally separate structure
and format the way our computers would like us to. HTML 5
favors the computer view, but leaves room for us silly
humans.

These days, instead of saying "If you look up 'miserable
failure' in the dictionary, there's a picture of George Bush there,"
you'd more likely say, "If you google 'miserable failure,' George Bush
is the first return."

Can we come up with more clichés transposed to the
world of tech? For example:

Editorial
Lint

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